BLS LLB 5 Years Sem 7 Family Law II 2017-18 Question Paper with Solutions

Section 4(3) of the Family Courts Act, 1984 provides that a person shall not be qualified for appointment as a Judge of a Family Court unless he:

• (a) has for at least seven years held a judicial office in India, or the office of a Member of a Tribunal, or any post under the Union or a State requiring special knowledge of law; or
• (b) has for at least seven years been an advocate of a High Court, or of two or more such Courts in succession; or
• (c) possesses such other qualifications as the Central Government may, with the concurrence of the Chief Justice of India, prescribe.

Section 4 of the Dowry Prohibition Act, 1961 provides that if any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years, and with fine which may extend to ten thousand rupees. The proviso allows the court, for adequate and special reasons to be mentioned in the judgment, to impose a shorter term.

Partition in Mitakshara law is the severance of the joint status: the conversion of an undivided and fluctuating coparcenary interest into a fixed and defined share. The division of the property by metes and bounds is a consequence of partition and not partition itself.

In the Dayabhaga, where each coparcener already holds a definite share, there is no status to sever, and partition means the physical division only.

A Uniform Civil Code is one body of civil law governing marriage, divorce, maintenance, adoption, guardianship, succession and inheritance for all citizens alike, in place of the personal laws that now apply according to religion.

Article 44 of the Constitution, a Directive Principle, provides that "the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India". By Article 37 it is not enforceable by any court, but is fundamental in the governance of the country.

Two disqualifications under the Hindu Succession Act, 1956:

1. Murder, section 25: a person who commits murder or abets the commission of murder is disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he committed or abetted the murder.
2. Children of a convert, section 26: the children born to a person after that person has ceased to be a Hindu by conversion, and their descendants, are disqualified from inheriting the property of any of their Hindu relatives, unless they are Hindus when the succession opens.

Clause (c), which allowed separate residence where the husband suffered from a virulent form of leprosy, was omitted by the Personal Laws (Amendment) Act, 2019.

Section 18(3) contains the only two disqualifications: a wife is not entitled to separate residence and maintenance if she is unchaste or if she has ceased to be a Hindu by conversion.

The amount, section 23(2): the position and status of the parties; the reasonable wants of the claimant; whether she is justified in living separately; the value of her own property and any income from it or from her earnings; and the number of persons entitled to maintenance under the Act.

5. A right of survivorship, now confined to the case where a coparcener dies leaving no heir who takes under the substituted section 6.
6. A right to maintenance and to marriage expenses out of the joint family funds.
7. A right to accounts, but only as at the date of partition; he cannot call the karta to account for past dealings unless fraud or misappropriation is alleged.
8. A right to become karta if he or she is the senior-most: Sujata Sharma v. Manu Gupta (2016, affirmed December 2023).
9. A right to will away the undivided interest, expressly recognised by the Explanation to section 30 of the Hindu Succession Act.

Its effect is to restore the joint status with all its incidents: the property is again coparcenary property, a son born afterwards takes an interest by birth, and the karta's powers apply. It may be oral, and the burden of proving it lies on the person alleging it. A female cannot reunite: the texts name only three male relations, and the 2005 Amendment did not extend them.

Reopening. A partition once made is final, but the court will reopen it on any of the following grounds:

1. fraud by one of the sharers;
2. mistake, including a mistake as to the extent of the property or the shares;
3. the omission of property from the division, whether by oversight or by concealment;
4. a share obtained by undue influence or coercion;
5. the birth of a son who was in the womb at the date of the partition, where no share was reserved for him and the partition was not postponed;
6. the return of a coparcener who was absent and whose share was not kept apart, including one who was believed dead;

Under the Hindu Marriage Act, 1955. Section 5(iii) requires the bridegroom to have completed twenty-one and the bride eighteen years. Breach makes the marriage neither void under section 11 nor voidable under section 12; the only consequence under this Act is punishment under section 18(a): rigorous imprisonment up to two years, or fine up to one lakh rupees, or both.

Under the Prohibition of Child Marriage Act, 2006, which replaced the Child Marriage Restraint Act, 1929 and is the Act that governs.

• Section 2(a): a "child" is a person who, if male, has not completed twenty-one and, if female, has not completed eighteen years.
• Section 3: the marriage is voidable at the option of the contracting party who was a child at the time; the petition must be filed before that party completes two years after attaining majority, and while the party is a minor may be filed through a guardian or next friend along with the Child Marriage Prohibition Officer. Section 3(4) requires the return of money, valuables, ornaments and gifts on annulment.

• Section 12: the marriage is void where the child was taken away or enticed from the lawful guardian, compelled by force or induced by deceitful means, or sold or trafficked for the purpose of marriage.
• Sections 13 and 14: the court may issue an injunction, and a marriage in breach of it is void.
• Section 15: every offence is cognizable and non-bailable.
• Section 21: every child of a child marriage is legitimate for all purposes, whether or not the marriage is annulled.

Jurisdiction, sections 7 and 8. The Family Court exercises the jurisdiction of a district court in the seven classes of matter in the Explanation to section 7(1): nullity, restitution, judicial separation and dissolution; a declaration of the validity of a marriage or of matrimonial status; the property of the parties; an injunction arising out of a marital relationship; legitimacy; maintenance; and guardianship, custody of and access to a minor. Section 7(2) adds the jurisdiction of a Magistrate of the first class under Chapter IX of the Code of Criminal Procedure, now Chapter X of the Bharatiya Nagarik Suraksha Sanhita, 2023. By section 8 that jurisdiction is exclusive, and pending matters stand transferred.

The distinctive features. Section 9, the duty in every suit to make an effort to assist and persuade the parties in arriving at a settlement; section 10, power to lay down its own procedure; section 11, proceedings in camera if the Court so desires and shall be so held if either party so desires; section 12, assistance of a medical expert or welfare expert; section 13, no right as of right to a legal practitioner, though the Court may take the help of a legal expert as amicus curiae; sections 14 and 15, a relaxed law of evidence and a memorandum of a witness's evidence; section 19, a single appeal to the High Court heard by two judges within thirty days, with no appeal from a consent order.

Connivance is wilful blindness to, or encouragement of, the offence before it is committed. It is distinguished from condonation by time and by state of mind: connivance precedes the act and involves consent or acquiescence in it; condonation follows the act and involves forgiveness of it. A husband who arranges the circumstances in which his wife commits adultery, or who deliberately shuts his eyes to what he could prevent, connives.

The related bar in the same clause, being an "accessory", is active participation in the offence.

(a) The provisions available against the mother-in-law.

The question asks specifically about the in-law, and the point to make first is that every provision named below reaches a relative of the husband and not merely the husband.

1. Cruelty, section 85 with section 86 of the Bharatiya Nyaya Sanhita, 2023, formerly section 498A of the Indian Penal Code. Section 85 punishes "the husband or the relative of the husband of a woman" who subjects her to cruelty, with imprisonment up to three years and fine. Section 86 defines cruelty to include harassment of a woman with a view to coercing her or any person related to her to meet an unlawful demand for any property or valuable security. The mother-in-law's demand for cash and a car is squarely within it.

3. Protection of Women from Domestic Violence Act, 2005. Section 2(q) defines "respondent" as any adult male person who is or has been in a domestic relationship with the aggrieved person; but the proviso allows an aggrieved wife to file a complaint against a relative of the husband, and in Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade (2011) the Supreme Court held that the words "relative of the husband" are not confined to male relatives, so a mother-in-law and a sister-in-law can be respondents. Section 3 covers physical, verbal, emotional and economic abuse and expressly includes harassment to coerce an unlawful demand for dowry. Avni may seek a protection order under section 18, a residence order under section 19 restraining the in-laws from dispossessing her from the shared household, monetary relief under section 20 and compensation under section 22, with interim orders under section 23.
4. Recovery of what was given. If the cash was paid, section 6 of the 1961 Act requires dowry received by any person other than the woman to be transferred to her, and failure to do so is an offence; and gifts made to Avni are her stridhana, held by her as full owner under section 14(1) of the Hindu Succession Act, 1956, so their retention is criminal breach of trust: Pratibha Rani v. Suraj Kumar (1985).

2. Divorce by mutual consent, section 13B, if he agrees: one year of living separately, inability to live together, and a second motion between six and eighteen months, the six months being waivable under Amardeep Singh v. Harveen Kaur (2017).

She should also consider not asking for divorce. Judicial separation under section 10 is available on the same grounds, preserves her inheritance rights as a Class I heir, may be rescinded under section 10(2), and after one year of non-resumption founds a divorce under section 13(1A)(i). And maintenance is available at once: sections 24 and 25 of this Act, section 18(2)(b) and (g) of the Hindu Adoptions and Maintenance Act, 1956, and section 125 of the Code of Criminal Procedure, now section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

If the flat was coparcenary property, the position is different, and the general rule is that a karta or a father cannot gift coparcenary immovable property; such a gift is void, not merely voidable. But there is a recognised exception in favour of a daughter: he may gift a reasonable area or a reasonable portion of immovable property to a daughter, whether on her marriage or afterwards, out of affection or by way of provision for her, and such a gift is valid. Whether the flat is a "reasonable portion" is a question of fact turning on the extent of the family property; a gift of a substantial part of it would be void as to the excess.

So: valid if the flat was his separate property; valid if coparcenary property and the flat is a reasonable portion given to a daughter; void if it exceeds that.

The fact that D was married does not affect the gift. It also does not affect her status as a coparcener in Sumit's family under the substituted section 6 of the Hindu Succession Act, 1956, since a daughter is a coparcener by birth and remains one after marriage. So on these facts D would in any event have had a share in the coparcenary property, and the gift is an additional provision.

(b) D's property devolves on her son and her husband, one-half each. Her mother takes nothing.

D's son and her husband are both in entry (a): each takes one-half. Her mother is in entry (c) and is therefore excluded.

Capacity of the giver, section 9: the child must be given by her father or mother, each acting with the consent of the other, unless one of them has renounced the world, ceased to be a Hindu or been declared of unsound mind; or, where both parents are dead, have renounced the world, have abandoned the child, or are of unsound mind, or the parentage is unknown, by a guardian with the previous permission of the court, which must be satisfied that the adoption is for the child's welfare and that no payment or reward has passed.

Capacity of the child, section 10: she must be a Hindu, not already adopted, not married unless a custom permits, and not have completed fifteen years unless a custom permits.

The other conditions, section 11, of which two bear directly on him:

• 11(ii): since he is adopting a daughter, he must have no Hindu daughter or son's daughter living at the time, whether by legitimate blood relationship or by adoption. Being unmarried he presumably has neither, but the bar is on a living Hindu daughter however she came into the family;

Section 14(3) answers the second half in terms: "Where a widower or a bachelor adopts a child, any wife whom he subsequently marries shall be deemed to be the step-mother of the adopted child."

So the relationship is step-mother and step-daughter. She does not become the adoptive mother, and the child's ties in law run to him alone as the adoptive parent.

For full marks, cover: the definition and the contrast with coparcenary property; the modes of acquiring separate property as a numbered list, with the Hindu Gains of Learning Act, 1930 named; the incidents of separate property; blending; and Chander Sen on how the category has grown.

A. What separate property is. Separate or self-acquired property is property which its owner holds absolutely, in which no other member of the family takes an interest by birth, and which he may sell, mortgage, gift or bequeath as he pleases. It stands opposed to coparcenary property, in which the coparceners take an interest by birth, held in unity of ownership, and where no member can point to a defined share before partition.

B. The modes of acquiring separate property.

1. By inheritance from a relation other than the three male ancestors. Property inherited from any relation other than the father, father's father or father's father's father, for example from a brother, a paternal uncle, a nephew or a maternal relation, is sapratibandha daya, obstructed heritage, and is separate property.

8. Property lost to the family and recovered by a member without the aid of joint family funds, of which he keeps the whole under the old texts.
9. A woman's stridhana, and now, by section 14(1) of the Hindu Succession Act, 1956, all property possessed by a female Hindu, however acquired, held by her as full owner and not as a limited owner.
10. Property inherited under section 8 of the Hindu Succession Act, 1956, on which see below.

C. The incidents of separate property. The owner is absolute owner: he may alienate it at will without any question of legal necessity or benefit of the estate; it is not liable to the claims of coparceners; on his death it devolves by succession under section 8 or section 15, or by will under section 30, and never by survivorship; and it is not available to satisfy debts contracted by the karta for the family.

1. Pre-Act polygamy, section 13(2)(i). In the case of a marriage solemnised before the commencement of the Act, that the husband had married again before such commencement, or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the petitioner's marriage; provided in either case that the other wife is alive at the time of the presentation of the petition.

Why it exists: the Act could not undo pre-Act polygamy retrospectively, since section 11 applies only to marriages solemnised after the commencement, and uncodified Hindu law permitted a man more than one wife. Rather than invalidate existing marriages, Parliament gave the wife a way out.

2. Rape, sodomy or bestiality, section 13(2)(ii). That the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality. These are offences a husband commits, which is why the ground is his wife's alone. A conviction is not necessary; the matrimonial court decides on the balance of probabilities.

Compare section 3 of the Prohibition of Child Marriage Act, 2006, which now gives a wider right: any party who was a child at the marriage, a female under eighteen or a male under twenty-one, may have it annulled by petition filed before completing two years after attaining majority.

All four grounds are equally grounds of judicial separation under section 10, which expressly borrows section 13(2) for a wife.

PART TWO: CRUELTY AND DESERTION

Cruelty, section 13(1)(ia). The ground is that the other party has, after the solemnisation of the marriage, treated the petitioner with cruelty. The words were substituted by the 1976 Amendment; before that the petitioner had to prove cruelty causing "a reasonable apprehension that it would be harmful or injurious", a heavier burden which survives in section 18(2)(b) of the 1956 Act.

Cruelty is not defined, deliberately, and covers physical and mental cruelty.

Desertion, section 13(1)(ib). The ground is that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The Explanation to section 13(1) defines desertion as desertion without reasonable cause and without the consent or against the wish of the petitioner, and provides that it includes the wilful neglect of the petitioner.

Its four elements: on the deserting spouse, the factum of separation and the animus deserendi; on the deserted spouse, the absence of consent and the absence of conduct giving reasonable cause to leave. All four must continue throughout the two years, and the period must immediately precede the petition.

Bipin Chandra Jaisinghbhai Shah v. Prabhawati (1957) is the leading case: both factum and animus are required, both must continue, and the offence is inchoate, so it may be ended at any time by a bona fide offer to return which the deserted spouse cannot unreasonably refuse. Savitri Pandey v. Prem Chandra Pandey (2002) held that a petitioner cannot rely on his or her own desertion, and Lachman Utamchand Kirpalani v. Meena (1964) that the burden is on the petitioner throughout.

For full marks, cover: the definition and why it governs; what property is divisible; the modes with the date of severance; then the persons entitled to demand partition and, separately, those who take a share without being able to demand it; partial partition, reopening and reunion; and section 6(3) and 6(5) with Vineeta Sharma.

A. What partition is. Partition in Mitakshara law is the severance of the joint status: the conversion of an undivided and fluctuating coparcenary interest into a fixed and defined share. The division of the property by metes and bounds is a consequence of partition and not partition itself. In the Dayabhaga, where each coparcener already holds a definite share, there is no status to sever and partition means physical division only.

Everything else follows from that definition, which is why it must come first.

2. A son, grandson and great-grandson, within the four degrees, and a son may demand partition against his father in Mitakshara law even in the father's lifetime.
3. A son born of a void or voidable marriage, to the extent of his father's share: Revanasiddappa v. Mallikarjun (1 September 2023) held that such a child takes a share in the parent's share of coparcenary property, ascertained on a notional partition, though he is not a coparcener.
4. A minor coparcener, through his next friend or guardian, where the court is satisfied that the partition is for the minor's benefit; the court's satisfaction is a condition, and this is the one case in which the right is not absolute.
5. An absent coparcener, or one believed dead, whose share is kept apart for him; if it was not, he may have the partition reopened.
6. An adopted son, from the date of the adoption, subject to proviso (c) to section 12 of the Hindu Adoptions and Maintenance Act, 1956, which forbids him to divest any person of an estate which vested before the adoption.

For full marks, cover: the definition in section 4(b); each type with the section and how the office arises; the powers under section 8 sub-section by sub-section; the testamentary guardian's powers under section 9(5); the de facto guardian under section 11 and the void-against-voidable distinction; sections 12 and 13; and Githa Hariharan.

A. The definition. Section 4(b) defines a "guardian" as a person having the care of the person of a minor or of his property, or of both his person and property, and includes (i) a natural guardian; (ii) a guardian appointed by the will of the minor's father or mother; (iii) a guardian appointed or declared by a court; and (iv) a person empowered to act as such by or under any enactment relating to any Court of Wards. Section 4(a) defines a "minor" as a person who has not completed eighteen years.

B. The types.

3. Guardian appointed or declared by a court, the certificated guardian, appointed under the Guardians and Wards Act, 1890, which supplies the procedure. Section 13 of the 1956 Act makes the welfare of the minor the paramount consideration in any such appointment.

4. De facto guardian, section 11. A person who has in fact taken charge of the minor's person or property without legal authority, typically an uncle, elder brother or grandfather. Section 11 provides that no such person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on that ground.

5. Guardian by affinity, the guardian of a minor widow, recognised in the older case law as the husband's relations. Its survival after the Act is doubtful, and the modern approach is to apply section 13.

6. Guardian under a Court of Wards enactment, expressly included by section 4(b)(iv).

C. The powers.

The natural guardian, section 8.

The testamentary guardian, section 9(5). He has all the rights of a natural guardian under this Act, to such extent and subject to such restrictions as are specified in this Act and in the will. So his powers are those in section 8, cut down twice: by section 8 itself and by whatever the will says.

The de facto guardian, section 11. He has no power to deal with the property at all, and a dealing by him is void.

B. What section 8 used to say, and why the amendment matters. Before 31 August 2010, a female Hindu had capacity to adopt in her own right only if she was unmarried, divorced or a widow, or if her husband had finally renounced the world, had ceased to be a Hindu, or had been declared of unsound mind; a married woman could not adopt at all, even with her husband's consent. On these facts the old law and the new give the same result, because the adopter is unmarried; but most textbooks still print the old section, and the examiner will notice which version you state.

C. Capacity of the giver, section 9. Only the father, the mother or the guardian. Since 2010 the father and mother have an equal right, and neither may exercise it without the consent of the other unless that other has renounced the world, ceased to be a Hindu or been declared of unsound mind. Where both parents are dead, have renounced the world, have abandoned the child, or are of unsound mind, or the parentage is unknown, the guardian may give the child with the previous permission of the court, which must be satisfied that the adoption is for the child's welfare and that no payment or reward has passed.

D. Capacity of the child, section 10. A Hindu, not already adopted, not married unless custom permits, and not over fifteen unless custom permits.

G. Effect, section 12. From the date of the adoption the child is her child for all purposes and the ties in the family of birth are severed, subject to three provisos: the marriage bars of the family of birth survive; property already vested in the child stays vested with its obligations, including the obligation to maintain relatives in the family of birth; and the child cannot divest any person of an estate which vested before the adoption. Section 16 makes a registered deed presumptive proof of compliance until disproved, and she should take one.

B. Class I. After the Hindu Succession (Amendment) Act, 2005 Class I has sixteen heirs: mother; widow; son; daughter; son and daughter of a predeceased son; son and daughter of a predeceased daughter; widow of a predeceased son; son, daughter and widow of a predeceased son of a predeceased son; and the four added in 2005, being the son and daughter of a predeceased daughter of a predeceased daughter, the daughter of a predeceased son of a predeceased daughter and the daughter of a predeceased daughter of a predeceased son.

C. Order and preference, section 9. Heirs in Class I take simultaneously and to the exclusion of all other heirs. Among Class II heirs, those in the first entry are preferred to those in the second, and so on through the nine entries; heirs in the same entry take equally, section 11.

D. Distribution among Class I heirs, section 10. Four rules:

• Rule 1: the widow takes one share; if there is more than one widow, all of them together take one share, divided equally among them.
• Rule 2: the surviving sons and daughters and the mother each take one share.

F. Class II. Nine entries: (I) father; (II) son's daughter's son, son's daughter's daughter, brother, sister; (III) daughter's son's son, daughter's son's daughter, daughter's daughter's son, daughter's daughter's daughter; (IV) brother's son, sister's son, brother's daughter, sister's daughter; (V) father's father, father's mother; (VI) father's widow, brother's widow; (VII) father's brother, father's sister; (VIII) mother's father, mother's mother; (IX) mother's brother, mother's sister.

G. Agnates and cognates. An agnate is related wholly through males, a cognate not wholly through males, sections 3(1)(a) and (c). Section 12 prefers the heir with fewer degrees of ascent; if equal, the one with fewer degrees of descent; failing both, they take simultaneously. Section 13 computes degrees inclusive of the intestate.

H. Coparcenary interest, section 6. Where the deceased was a coparcener in a Mitakshara joint family, his interest devolves by testamentary or intestate succession and not by survivorship, the share being ascertained on a notional partition immediately before his death, in which the daughter takes as a coparcener in her own right; the share so ascertained then passes under section 8.